A. INTRODUCTION
1. The Appellant, Hussein Easter Mohammed, was convicted after a full trial of the offence of robbery with violence contrary to Section 295 as read with Section 296(2) Penal Code. The particulars of the charge were that on 31/05/2022 at about 8:30pm at Bungoma South Sub County within Bungoma County robbed rose Wamukota a Techno phone worth Kshs. 10,000, and a bag containing cash Kshs. 75,000 and immediately before the robbery used actual violence wounding the said Rose Wamukota. The Appellant denied the charges and the case proceeded before the lower court to full trial.
2. On 14th February 2024, the trial court found the Appellant guilty as charged and was convicted accordingly under Section 215 of the CPC and and sentenced him to 25 years imprisonment also taking into consideration the time spent in custody while undergoing trial.
3. Dissatisfied with both the conviction and the sentence, the Appellant filed an undated Petition of Appeal, raising the following grounds: that he did not plead guilty to the charges; that the trial magistrate erred in law and fact by convicting him based on uncorroborated evidence from the prosecution side; the learned trial magistrate erred in law and fact by relying on afterthought evidence from the prosecution; the learned trial magistrate erred in law and fact by failing to observe that the Appellant’s constitutional rights were violated under Article 50(2) of the Constitution.
4. The Appellant urges this Court to allow the appeal, quash the conviction, set aside the sentence of 25 years and order that he be set at liberty, or in the alternative, grant such other relief as this Court may deem appropriate in the circumstances.
B. THE DUTY OF THIS COURT
5. This being the first appellate court, the duty of this Court is well settled. This Court must re-evaluate the evidence on the record afresh and arrive at its own independent conclusions, while always bearing in mind that the trial court had the distinct advantage of seeing and hearing the witnesses testify and observing their demeanour. As was stated by the Court of Appeal in Okeno v Republic [1972] EA 32, the first appellate court must subject the evidence to exhaustive examination and reach its own conclusions, making proper allowance for the fact that it has not seen the witnesses. This principle has been consistently affirmed by the Court of Appeal in Kiilu & Another v Republic [2005] 1 KLR 174 and David Njuguna Wairimu v Republic [2010] eKLR. The Court of Appeal in Gitobu Imanyara & 2 others v Attorney General [2016] eKLR stated the applicable principles thus:
This being a first appeal, it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.
6. Consistent with these principles, I will carry out an independent assessment of the evidence while according appropriate deference to the learned Magistrate, who had the distinct advantage of observing the demeanour of the witnesses.
7. A good point to start from would then be a recap of the evidence adduced at the trial court.
C. SUMMARY OF THE PROSECUTION EVIDENCE
8. PW1, Rose Wamukala, the complainant testified that she is a shopkeeper and runs an mpesa outlet. The Appellant is well known to her and referred to him as Taib and a well known criminal. She recalled that on 31/05/2022 at around 8:00pm, she closed her shop and headed home. On the way she met the accused and two others. She had a torch from her phone. She greeted them and they did not respond. The Appellant proceeded to hit her on her head with an object and she fell down. She was attacked by the others and snatched Kshs. 7,500 and a mobile phone from her. Upon being attached, she screamed and people came to her rescue. She was then taken to hospital. She further testified that the Appellant left his phone at the scene and identified the phone in court. She also identified the Appellant as her attacker. She had a torch hence she saw the Appellant She identified a receipt she was issued when she bought her phone, three photos of her injuries, the photo certificate. She identified the Appellant’s phone infinix which had a photo of the Appellant on it.
9. On cross examination, the complainant that the Appellant attacked her as she went home and he hit her on her head with an object, which she suspected was a piece of wood. When she creamed members of the public came to her rescue and attacked him before running away. She testified that when members of the public caught up with the Appellant someone shouted that the Appellant had a gun and would shoot hence withdrew for fear of their lives and that at the area the Appellant is known as a thief and a criminal.
10. PW2, Moses Juma, testified that PW1 is a neighbour at home and the Appellant was a tenant up to late 2017. He recalled that on 31/05/2022 at around 8:00 to 8:30 pm, he heard screams and rushed out and found the complainant screaming and two people running away, they gave chase and caught the Appellant. He was with one Amos and caught the Appellant some 300 metres from the scene. He had a torch and flashed it at the Appellant and identified him. Many people came and they started to beat up the Appellant but did not fined him with anything. PW2 stated that the other assailants may have gone with any stole item. The Appellant cried that he had lost his phone at it was found at the scene and handed over to the police. The phone had photos of the Appellant. The Appellant then fled mysteriously.
11. On cross examination, PW2 confirmed seeing the Appellant’s accomplices running away, he had chased the Appellant, caught up with him and returned him to the scene. He caught up with the Appellant in a farm and returned him to the road where the appellant was beaten by members of the public. He further stated that he is a Nyumba Kumi member.
12. PW3, Amos Wanyonyi, testified that he knew the Appellant as a neighbour. He recalled that on 31/05/2022 at around 8:30pm, he was in the house and heard screams from the complainant. He rushed to the scene and saw two people fleeing, they each went different ways. Accompanied by PW2 he chased after the Appellant and caught up with him. Other members of the public who fell down and pretended to be unconscious and then the Appellant fled. He had known the Appellant prior to the incident. They did not recover anything at the scene except for the Appellant’s phone which he saw and it had the Appellant’s photo. He identified the Appellant in Court.
13. On cross examination, he confirmed that he heard screams, saw two people running away caught up with the Appellant at a farm and brought him back to the scene where irate members of the public assaulted the Appellant. He stated that the Appellant did not have a weapon or a gun.
14. PW4 Elias Adoka, a clinical officer at Bungoma County Referral Hospital testified that he filled a P3 form after he had examined the complainant who gave a history of assault by someone known to her. The complainant had a wound on the head and the injuries were about 6 days old. A sharp object was used and medication was given and the wound was stiched. He assessed the degree of injury as grievous harm. The complainant had been attended to previously in 2 facilities, Nabwala Hospital on 03/06/22 where first aid was given and was also seen at Bungoma District Hospital for a CT Scan. He received the complainant after she had been attended to at the two hospitals. He produced the P3 for, treatment notes from the two hospitals.
15. PW5, No. 258011, P. C. Vincent Orwa from Manyanja Police Station, testified that he is the investigating officer and recalled that on 31/05/2022, at around 8:30pm, he was called by the deputy OCPD to the scene of crime where the complainant had been attached and robbed. He went to the scene and on arrival the victim had been rushed to Nabwala Hospital with a cut on the head and was attended to. The Complainant was discharged on 03/06/2022 and was issued with a P3 form. The complainant told him that the Appellant’s phone was recovered at the scene and handed to her. Eventually the Appellant was arrested and the complainant identified the Appellant. He produced the items being, receipt techno spark, infinix phone having an image of the accused, photographs of the complainant’s injuries, photographs certificate. He further testified that the Appellant had another case of burglary and stealing for which he was service=ng sentence. The Appellant had given a different name and the I. O. had his National ID which bore the name Tyson Pius Maende, which he produced. He confirmed the Appellant was the same person he had arrested and charged.
16. On cross examination, the I. O. confirmed that the Appellant was serving sentence on burglary and stealing and the evidence from the complainant and witnesses linked the Appellant to the offence and the phone recovered at the scene had the image of the Appellant. He had no records of the Appellant and that the offence was committed at Mayanja area. The phone was dropped during the commission of the offence and the complainant lost consciousness and was rushed to the hospital.
17. Upon conclusion of the prosecution’s case, the Appellant was put on his defence and upon being informed of his rights under Section 211 of the CPC, opted to give sworn evidence. The Appellant testified that his name is Tyson Pius Mayende, a farmer and was arrested on 11/09/2022 with a case of breaking and stealing. While at the police station, he stayed 3 days and was then presented to Court. He was surprised to be charged with a case he did not know. He testified that he did not know the complainant. He narrated that his name was not Mohammed by the I. O. refused to hear. The name he had been charged with was not his and the I. O. couldn’t hear any of it. He testified that the phone found at the scene was not his and that his phone was returned to him by the I. O.
18. He further testified that he had requested for his items to be returned to him while is was before a different Court. He was arrested at Kanduyi and has never been to Mayanja. He left Bungoma on 29/05/22 for Eldoret to visit his brother and back to Bungoma on 03/06/22. He stated that the I. O. and him have a grudge and he has been framed. He produced a bus ticket and closed his case.
D. PARTIES' SUBMISSIONS
Appellant's Submissions
19. The Appellant canvased his appeal by way of written submissions and in his submissions, the Appellant was arrested about 300m from the scene and nothing was recovered from him. The charge sheet did not state that he was jointly with others and it shows that probability he had an accomplice who ran away with the Kshs. 75,000 and techno spark phone is zero. He further submits that the issue of two other people was an afterthought and the complainant did not prove that indeed she had Kshs. 75,000/- and the phone at the time of the attack.
20. He further submitted that Pw3 and PW1’s testimony contradicted each other as one said Kshs. 75,000 while the other said Kshs. 7,500 and the money and phone were not produced in court as exhibits. The sale receipt had no name of the buyer and the IMEI identifying the techno spark phone bought o that particular day hence the authenticity of the receipt is suspect and urged the court to reject the evidence pursuant to Article 50(4) of the constitution. The evidence could not be blindly accepted.
21. He further submitted that there was no expert evidence from Safaricom or ITEL to identify the buyer and current user at the time of the attack thus no evidence the complainant was the user at the time of the attack and since the prosecution failed to prove the complainant had the phone and the stolen money at the time of the attack, reasonable doubt had been raised and any case of robbery cannot stand. He relied on the case of Samuel Kariuki Wanjiku vs. Republic [2019] eKLR where the court held that;
“therefore, it was of no consequence therefore, whether or not the prosecution proved that the Appellant was 9a) in company of two other attackers or (b) whether they were armed with dangerous or offensive weapons or (c) whether he or they wounded, struck or beat any person, because the substratum of the offence that is stealing is not established.”
22. He further submitted that the complainant did not state that she directed the torch light to the face of the Appellant for positive identification, the intensity and brightness of the said phone and no torch light was directed on his face and PW2 and PW3 did not state the source of the light they used for positive identification.
23. There were no experts brought to identify the image on the phone that was picked 30 metres from the scene and alleged to belong to him and PW1, PW2 and PW3 are not such experts and even the court is not such an expert. Communication experts were not brought to determine the user of the phone at the time of the offence and were mere suspicions that could not provide a basis for convicting the accused. He relied on the case of Sawe vs. R [2003] eKLR
24. He further submitted that the charge sheet did not charge the offender as joint offenders where the prosecution evidence provides two attackers, the charge sheet did not charge the offender being armed with a dangerous or offensive weapon, the charge sheet did not charge the Appellant with the name “Taib” as the prosecution stated that it is the name the Appellant is known in the area hence the charge sheet and the prosecution evidence are at variance which is incurable under Section 382 of the CPC.
25. He submitted that the charge was duplex and relied on the case on Mwaura v R [2013]eKLR which Court held that;
“the main charge for which the Appellant were convicted was framed as charge for robbery with violence contrary to section 295 as read with 296(2) of the Penal Code which in accordance with Mwaura v R rendered it duplex as the two offences under Section 295 and 296(2) of the Penal Code are different”
26. The Appellant further rile don the case of Koome vs. R [2005]1KLR 575 and Hamisi Bakari & Another vs. R [1987] KLR where the court said
‘We would note that where a heavy minimum sentence is involved, the lower courts should be particular to see that each ingredient in the charge is reflected in the particulars of the offence and is properly proved. Seven years is a long time to serve in a case here the issues are not clear.”
27. He submits that the ingredient of being in company and having offensive weapons were not reflected in the particulars of the charge and not properly proved. No gun or wooden bar was recovered from him and the charge sheet did not state that he had an offensive weapon. The Appellant sates he was the only person arrested and charged with this offence, it was at night and the prosecution did not state under which light he saw the other 2 suspects and how they proved that he was in company with the Appellant and hence that issue is not clear.
28. He further submitted attacking the identification by the complainant and submitted that in the first report by PW1, PW2 and PW3 who alleged to have identified the Appellant by reason of long acquaintance, the witnesses never identified the Appellant by name and never gave a description of him. The name “Taib” was only introduced by PW1 in court but had not been mentioned anywhere in her first report. PW5 did not corroborate PW 1 and the charge sheet did not mention “Taib as an alias.
29. The Appellant further submitted that PW5 did not have the Appellant’s name until his arrest. He submitted that the incident is alleged to have happened on 31/05/2022 and was arrested on 11/09/2022 and begged the question, if the witnesses knew him, why wasn’t he arrested immediately and the police did not give any explanation why it took four months and two days to arrest a person who was present and well known. He further submitted that the offence he was charged with was maliciously planted to keep him in prison.
30. He submitted that at the time of the offence he was in Eldoret and the identification and recognition was mistaken. He was arrested for the offence of burglary and stealing and this case was planted on him due to grudges and attitude of the prosecution witness about him. The phone recovered at the scene was not his and his phone had already been returned to him by the I. O. This was not rebutted under Section 309 of the CPC hence penalizing the Appellant on the failure to discharge his duties.
Respondents submissions
31. The Respondent, in opposing the Appeal, canvased his appeal by way of written submissions and summarized the Appellant’s grounds as follows; identification was not proved beyond reasonable doubt; his conviction was based on uncorroborated evidence from the prosecution; reliance on afterthought evidence and failure to observe Article 50(2) of the Constitution. He relied on the case of Odhiambo vs. R [2008] KLR 565.
32. The Respondent identified three issues for determination being, whether the Respondent proved all ingredients of the offence of robbery with violence; whether the Appellant’s identification was proved and whether the sentence meted out by the Court against the Appellant was within the law.
33. On the elements of robbery with violence, the Respondent relied on the cases of Oluoch vs. Republic [1985] KLR and Dima Denge Dima & Others vs. R CA No. 300 of 2007 where in both cases, the Court highlighted the elements of the offence of robbery with violence which are that; the offender is armed with any dangerous weapon or instrument, or the offender is in company with one or more persons or at or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence on any person. The Respondent submits that PW1 met the Appellant and two others, PW2 heard screams and rushed out and realized it was the complainant who was screaming and saw 2 people running away and PW3 corroborated the evidence of PW2.
34. The State submitted that the eye witness testimony demonstrates that the crime was committed by more than one person and it was unfortunate the accomplices vanished. They further submit that PW1 testified that she was hit by an object and lost her money and phone and PW4 confirmed the injuries after examination and found that the injuries were inflicted by a sharp object. Hence all ingredients of the charge were proved.
35. It was further submitted by the state that the Appellant was positively identified by the complainant as she had known him for a while and further, PW2 identified the Appellant and had a torch and saw 2 people running. He flashed his torch at the Appellant and positively recognized him as he was a tenant since 2017. PW3 corroborated the evidence of PW2. Reliance was placed on the case of Wamunga vs. R[1989]KLR 424 which held that;
“it is trite law that where the only evidence against a defendant is evidence on identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of the identification were favourable and free from possibility of error before it can safely make it the basis of a conviction”
36. On recognition, the state relied on the case of Leonard Kipkemoi vs. R [2018]eKLR where the factors to be considered with respect to recognition were set out in R vs. Turnbull and other [1976] All ER 549 and in that case the court stated as follows;
“the judge should direct the jury to examine closely the circumstances un which the identification by each witness came to be made. How long did the witness have with the accused under observation? At what distance? In what light? Was the observation impeded in any way? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reasons for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? Recognition may be more reliable that identification of a stranger”
37. The Respondent submitted that in the instant Appeal it was recognition and not identification of the Appellant as the Appellant and the Complainant were known to each other.
38. The Respondent submitted that the offence meted out was within the law and in fact was a lenient sentence and the 25 years imprisonment was light and sought enhancement if the court deems it fit. The Respondent further submits that the Appellant rights under Article 50(2) of the constitution were not violated as the Appellant was accorded due process and procedure from inception to judgement. The Respondent urged the Court to dismiss the appeal and uphold the conviction of the trial court.
E. ANALYSIS AND DETERMINATION
39. I have perused the Record of Appeal and, in particular, the charge sheet upon which the Appellant was tried and convicted. The charge is framed as follows: robbery with violence contrary to Section 296(2) of the Penal Code. The particulars of the offence state that the Appellant, on the 31st day of May 2022 at around 20:30 hours at Manyanja Township in Bungoma South Sub-County within Bungoma County, robbed Rose Wamukoto of a Techno phone worth Kshs. 10,000 and a cash bag containing Kshs. 75,000, and immediately before the time of such robbery wounded the said Rose Wamukoto on her head.
40. Having carefully re-evaluated the entire record, including the evidence of the five prosecution witnesses, the sworn evidence of the Appellant, and the rival submissions of the parties, I am satisfied that this appeal turns on four issues for determination: first, whether the charge as framed was bad for duplicity; second, whether the prosecution proved the essential ingredients of robbery with violence contrary to Section 296(2) of the Penal Code; third, whether the identification or recognition of the Appellant was free from the possibility of error; and fourth, whether the sentence imposed was lawful and appropriate in the circumstances.
Whether the Charge was Bad for Duplicity
41. The Appellant submits, relying on Mwaura v Republic [2013] eKLR, that the charge as framed was duplex in that it cited Section 295 as read with Section 296(2) of the Penal Code, thereby conflating two distinct offences.
42. I have already set out above the charge sheet forming part of the Record of Appeal. It charges the Appellant with the single offence of robbery with violence contrary to Section 296(2) of the Penal Code alone. Section 296(2) is a complete offence-creating provision. It does not merely cross-refer to Section 295; rather, it incorporates within itself the elements of robbery while prescribing an enhanced penalty where any of the aggravating circumstances set out therein is established. The conventional and proper practice, affirmed in a long line of authority including Oluoch v Republic [1985] KLR 549, is to charge an accused person under Section 296(2) simpliciter, without separately invoking Section 295.
43. The decision in Mwaura v Republic (supra) is distinguishable. That case concerned a charge sheet that conjunctively cited Section 295 and Section 296(2) in a manner that created genuine ambiguity as to which offence the accused was called upon to answer. No such ambiguity arises on the face of the present charge sheet, which is framed in the singular and conventional manner. I am accordingly satisfied that the charge was not duplex, and I am unable to find any merit in this ground of appeal.
Whether the Prosecution Proved the Ingredients of Robbery with Violence
44. The elements of the offence of robbery with violence under Section 296(2) of the Penal Code were authoritatively set out in Oluoch v Republic (supra) and Dima Denge Dima & Others v Republic, Criminal Appeal No. 300 of 2007. The prosecution must establish the basic ingredients of theft accompanied by the use or threat of violence, together with proof of at least one of the following three aggravating circumstances: that the offender is armed with a dangerous or offensive weapon; that the offender is in the company of one or more other persons; or that immediately before, during, or immediately after the robbery, the offender wounds, beats, strikes or uses other personal violence upon any person. It is firmly settled, and I respectfully adopt the reasoning of the Court in Johana Ndungu v Republic, Criminal Appeal No. 116 of 1995, that these three circumstances are disjunctive and not cumulative; proof of any one suffices.
45. I have considered the evidence of PW1, who testified that she was struck on the head with an object and fell down, after which her phone and cash were taken from her. That evidence is corroborated by PW4, the clinical officer who examined her and found a wound to the head and assessed as grievous harm, caused by a sharp or blunt object, and which required suturing. I find that the use of actual violence upon the complainant, immediately before or during the taking of her property, was amply established on the evidence and satisfies the third limb of Section 296(2). It is therefore unnecessary for purposes of sustaining the conviction to make a definitive finding on whether the Appellant was in the company of others or was armed with a weapon, since proof of any single aggravating circumstance is sufficient in law.
46. I nonetheless address the company-of-others limb briefly, since it featured prominently in submissions. PW1 testified that she encountered the Appellant together with two other persons immediately before the attack. PW2 and PW3 both testified to seeing two individuals fleeing the scene upon their arrival, one of whom was pursued and apprehended as the Appellant. This evidence is mutually corroborative and satisfies me, on a balance independent of the violence limb already addressed, that the Appellant did not act alone. The Appellant's submission that the charge sheet's silence on joint commission renders the evidence of accomplices inadmissible or fatal to the prosecution's case is misconceived; the charge sheet need not name or describe co-offenders who were never apprehended in order for evidence of their presence and participation to be led and relied upon.
47. As to the discrepancy between PW1's evidence that Kshs. 7,500 was taken and PW3's reference to Kshs. 75,000, I note that the charge sheet itself, drawn from the original complaint, particularises the sum taken as Kshs. 75,000 — consistent with PW3's evidence rather than PW1's. This satisfies me that PW1's reference to Kshs. 7,500 in her oral testimony was no more than a slip in recollection or a transposition of figures while recounting a fast-moving and violent encounter, and not a material contradiction casting doubt on the prosecution's case. The authority in Erick Onyango Ondeng v Republic [2014] eKLR is instructive in any event: minor inconsistencies on matters not going to the root of the charge, particularly the precise quantum of cash taken, do not displace consistent and corroborated evidence on the central facts of the assault and the taking of property. I am satisfied that property was taken from the complainant by violence; the precise sum is not an element of the offence, and the discrepancy, properly understood against the charge sheet's own particulars, does not raise a reasonable doubt as to the occurrence of the robbery itself.
48. Similarly, I find no merit in the submission that the prosecution's failure to produce the stolen phone and cash, or expert evidence identifying the registered user of the complainant's phone, is fatal to the charge. Non-recovery of stolen property is unremarkable where, as here, the evidence establishes that two accomplices fled the scene with the proceeds of the robbery and were never apprehended. The offence of robbery is proved by evidence of the taking accompanied by violence; it does not require physical production of the stolen item as a precondition to conviction, particularly where, as here, the taking itself was directly witnessed and is corroborated by the medical evidence of injury.
49. I accordingly find that the prosecution proved beyond reasonable doubt the essential ingredients of the offence of robbery with violence contrary to Section 296(2) of the Penal Code.
Whether the Identification and Recognition of the Appellant was Free from Error
50. This issue lies at the heart of the appeal and merits the most careful scrutiny. It is trite law, as stated in Wamunga v Republic [1989] KLR 424, that where the case against an accused person rests wholly or substantially on evidence of identification or recognition, the trial court is enjoined to examine that evidence with the greatest care and to satisfy itself that the circumstances of the identification were favourable and free from the possibility of error before founding a conviction upon it.
51. I am satisfied, as was correctly appreciated by the trial court, that this is properly a case of recognition rather than identification of a stranger. PW1 testified that the Appellant was known to her prior to the material date and was referred to in the locality by the name 'Taib.' PW2 testified that the Appellant had been his tenant from an earlier period up to late 2017, and PW3 testified that he knew the Appellant as a neighbour. Recognition of a person previously known to a witness is, as the
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1. The Appellant, Hussein Easter Mohammed, was convicted after a full trial of the offence of robbery with violence contrary to Section 295 as read with Section 296(2) Penal Code. The particulars of the charge were that on 31/05/2022 at about 8:30pm at Bungoma South Sub County within Bungoma County robbed rose Wamukota a Techno phone worth Kshs. 10,000, and a bag containing cash Kshs. 75,000 and immediately before the robbery used actual violence wounding the said Rose Wamukota. The Appellant denied the charges and the case proceeded before the lower court to full trial.
2. On 14th February 2024, the trial court found the Appellant guilty as charged and was convicted accordingly under Section 215 of the CPC and and sentenced him to 25 years imprisonment also taking into consideration the time spent in custody while undergoing trial.
3. Dissatisfied with both the conviction and the sentence, the Appellant filed an undated Petition of Appeal, raising the following grounds: that he did not plead guilty to the charges; that the trial magistrate erred in law and fact by convicting him based on uncorroborated evidence from the prosecution side; the learned trial magistrate erred in law and fact by relying on afterthought evidence from the prosecution; the learned trial magistrate erred in law and fact by failing to observe that the Appellant’s constitutional rights were violated under Article 50(2) of the Constitution.
4. The Appellant urges this Court to allow the appeal, quash the conviction, set aside the sentence of 25 years and order that he be set at liberty, or in the alternative, grant such other relief as this Court may deem appropriate in the circumstances.
B. THE DUTY OF THIS COURT
5. This being the first appellate court, the duty of this Court is well settled. This Court must re-evaluate the evidence on the record afresh and arrive at its own independent conclusions, while always bearing in mind that the trial court had the distinct advantage of seeing and hearing the witnesses testify and observing their demeanour. As was stated by the Court of Appeal in Okeno v Republic [1972] EA 32, the first appellate court must subject the evidence to exhaustive examination and reach its own conclusions, making proper allowance for the fact that it has not seen the witnesses. This principle has been consistently affirmed by the Court of Appeal in Kiilu & Another v Republic [2005] 1 KLR 174 and David Njuguna Wairimu v Republic [2010] eKLR. The Court of Appeal in Gitobu Imanyara & 2 others v Attorney General [2016] eKLR stated the applicable principles thus:
This being a first appeal, it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.
6. Consistent with these principles, I will carry out an independent assessment of the evidence while according appropriate deference to the learned Magistrate, who had the distinct advantage of observing the demeanour of the witnesses.
7. A good point to start from would then be a recap of the evidence adduced at the trial court.
C. SUMMARY OF THE PROSECUTION EVIDENCE
8. PW1, Rose Wamukala, the complainant testified that she is a shopkeeper and runs an mpesa outlet. The Appellant is well known to her and referred to him as Taib and a well known criminal. She recalled that on 31/05/2022 at around 8:00pm, she closed her shop and headed home. On the way she met the accused and two others. She had a torch from her phone. She greeted them and they did not respond. The Appellant proceeded to hit her on her head with an object and she fell down. She was attacked by the others and snatched Kshs. 7,500 and a mobile phone from her. Upon being attached, she screamed and people came to her rescue. She was then taken to hospital. She further testified that the Appellant left his phone at the scene and identified the phone in court. She also identified the Appellant as her attacker. She had a torch hence she saw the Appellant She identified a receipt she was issued when she bought her phone, three photos of her injuries, the photo certificate. She identified the Appellant’s phone infinix which had a photo of the Appellant on it.
9. On cross examination, the complainant that the Appellant attacked her as she went home and he hit her on her head with an object, which she suspected was a piece of wood. When she creamed members of the public came to her rescue and attacked him before running away. She testified that when members of the public caught up with the Appellant someone shouted that the Appellant had a gun and would shoot hence withdrew for fear of their lives and that at the area the Appellant is known as a thief and a criminal.
10. PW2, Moses Juma, testified that PW1 is a neighbour at home and the Appellant was a tenant up to late 2017. He recalled that on 31/05/2022 at around 8:00 to 8:30 pm, he heard screams and rushed out and found the complainant screaming and two people running away, they gave chase and caught the Appellant. He was with one Amos and caught the Appellant some 300 metres from the scene. He had a torch and flashed it at the Appellant and identified him. Many people came and they started to beat up the Appellant but did not fined him with anything. PW2 stated that the other assailants may have gone with any stole item. The Appellant cried that he had lost his phone at it was found at the scene and handed over to the police. The phone had photos of the Appellant. The Appellant then fled mysteriously.
11. On cross examination, PW2 confirmed seeing the Appellant’s accomplices running away, he had chased the Appellant, caught up with him and returned him to the scene. He caught up with the Appellant in a farm and returned him to the road where the appellant was beaten by members of the public. He further stated that he is a Nyumba Kumi member.
12. PW3, Amos Wanyonyi, testified that he knew the Appellant as a neighbour. He recalled that on 31/05/2022 at around 8:30pm, he was in the house and heard screams from the complainant. He rushed to the scene and saw two people fleeing, they each went different ways. Accompanied by PW2 he chased after the Appellant and caught up with him. Other members of the public who fell down and pretended to be unconscious and then the Appellant fled. He had known the Appellant prior to the incident. They did not recover anything at the scene except for the Appellant’s phone which he saw and it had the Appellant’s photo. He identified the Appellant in Court.
13. On cross examination, he confirmed that he heard screams, saw two people running away caught up with the Appellant at a farm and brought him back to the scene where irate members of the public assaulted the Appellant. He stated that the Appellant did not have a weapon or a gun.
14. PW4 Elias Adoka, a clinical officer at Bungoma County Referral Hospital testified that he filled a P3 form after he had examined the complainant who gave a history of assault by someone known to her. The complainant had a wound on the head and the injuries were about 6 days old. A sharp object was used and medication was given and the wound was stiched. He assessed the degree of injury as grievous harm. The complainant had been attended to previously in 2 facilities, Nabwala Hospital on 03/06/22 where first aid was given and was also seen at Bungoma District Hospital for a CT Scan. He received the complainant after she had been attended to at the two hospitals. He produced the P3 for, treatment notes from the two hospitals.
15. PW5, No. 258011, P. C. Vincent Orwa from Manyanja Police Station, testified that he is the investigating officer and recalled that on 31/05/2022, at around 8:30pm, he was called by the deputy OCPD to the scene of crime where the complainant had been attached and robbed. He went to the scene and on arrival the victim had been rushed to Nabwala Hospital with a cut on the head and was attended to. The Complainant was discharged on 03/06/2022 and was issued with a P3 form. The complainant told him that the Appellant’s phone was recovered at the scene and handed to her. Eventually the Appellant was arrested and the complainant identified the Appellant. He produced the items being, receipt techno spark, infinix phone having an image of the accused, photographs of the complainant’s injuries, photographs certificate. He further testified that the Appellant had another case of burglary and stealing for which he was service=ng sentence. The Appellant had given a different name and the I. O. had his National ID which bore the name Tyson Pius Maende, which he produced. He confirmed the Appellant was the same person he had arrested and charged.
16. On cross examination, the I. O. confirmed that the Appellant was serving sentence on burglary and stealing and the evidence from the complainant and witnesses linked the Appellant to the offence and the phone recovered at the scene had the image of the Appellant. He had no records of the Appellant and that the offence was committed at Mayanja area. The phone was dropped during the commission of the offence and the complainant lost consciousness and was rushed to the hospital.
17. Upon conclusion of the prosecution’s case, the Appellant was put on his defence and upon being informed of his rights under Section 211 of the CPC, opted to give sworn evidence. The Appellant testified that his name is Tyson Pius Mayende, a farmer and was arrested on 11/09/2022 with a case of breaking and stealing. While at the police station, he stayed 3 days and was then presented to Court. He was surprised to be charged with a case he did not know. He testified that he did not know the complainant. He narrated that his name was not Mohammed by the I. O. refused to hear. The name he had been charged with was not his and the I. O. couldn’t hear any of it. He testified that the phone found at the scene was not his and that his phone was returned to him by the I. O.
18. He further testified that he had requested for his items to be returned to him while is was before a different Court. He was arrested at Kanduyi and has never been to Mayanja. He left Bungoma on 29/05/22 for Eldoret to visit his brother and back to Bungoma on 03/06/22. He stated that the I. O. and him have a grudge and he has been framed. He produced a bus ticket and closed his case.
D. PARTIES' SUBMISSIONS
Appellant's Submissions
19. The Appellant canvased his appeal by way of written submissions and in his submissions, the Appellant was arrested about 300m from the scene and nothing was recovered from him. The charge sheet did not state that he was jointly with others and it shows that probability he had an accomplice who ran away with the Kshs. 75,000 and techno spark phone is zero. He further submits that the issue of two other people was an afterthought and the complainant did not prove that indeed she had Kshs. 75,000/- and the phone at the time of the attack.
20. He further submitted that Pw3 and PW1’s testimony contradicted each other as one said Kshs. 75,000 while the other said Kshs. 7,500 and the money and phone were not produced in court as exhibits. The sale receipt had no name of the buyer and the IMEI identifying the techno spark phone bought o that particular day hence the authenticity of the receipt is suspect and urged the court to reject the evidence pursuant to Article 50(4) of the constitution. The evidence could not be blindly accepted.
21. He further submitted that there was no expert evidence from Safaricom or ITEL to identify the buyer and current user at the time of the attack thus no evidence the complainant was the user at the time of the attack and since the prosecution failed to prove the complainant had the phone and the stolen money at the time of the attack, reasonable doubt had been raised and any case of robbery cannot stand. He relied on the case of Samuel Kariuki Wanjiku vs. Republic [2019] eKLR where the court held that;
“therefore, it was of no consequence therefore, whether or not the prosecution proved that the Appellant was 9a) in company of two other attackers or (b) whether they were armed with dangerous or offensive weapons or (c) whether he or they wounded, struck or beat any person, because the substratum of the offence that is stealing is not established.”
22. He further submitted that the complainant did not state that she directed the torch light to the face of the Appellant for positive identification, the intensity and brightness of the said phone and no torch light was directed on his face and PW2 and PW3 did not state the source of the light they used for positive identification.
23. There were no experts brought to identify the image on the phone that was picked 30 metres from the scene and alleged to belong to him and PW1, PW2 and PW3 are not such experts and even the court is not such an expert. Communication experts were not brought to determine the user of the phone at the time of the offence and were mere suspicions that could not provide a basis for convicting the accused. He relied on the case of Sawe vs. R [2003] eKLR
24. He further submitted that the charge sheet did not charge the offender as joint offenders where the prosecution evidence provides two attackers, the charge sheet did not charge the offender being armed with a dangerous or offensive weapon, the charge sheet did not charge the Appellant with the name “Taib” as the prosecution stated that it is the name the Appellant is known in the area hence the charge sheet and the prosecution evidence are at variance which is incurable under Section 382 of the CPC.
25. He submitted that the charge was duplex and relied on the case on Mwaura v R [2013]eKLR which Court held that;
“the main charge for which the Appellant were convicted was framed as charge for robbery with violence contrary to section 295 as read with 296(2) of the Penal Code which in accordance with Mwaura v R rendered it duplex as the two offences under Section 295 and 296(2) of the Penal Code are different”
26. The Appellant further rile don the case of Koome vs. R [2005]1KLR 575 and Hamisi Bakari & Another vs. R [1987] KLR where the court said
‘We would note that where a heavy minimum sentence is involved, the lower courts should be particular to see that each ingredient in the charge is reflected in the particulars of the offence and is properly proved. Seven years is a long time to serve in a case here the issues are not clear.”
27. He submits that the ingredient of being in company and having offensive weapons were not reflected in the particulars of the charge and not properly proved. No gun or wooden bar was recovered from him and the charge sheet did not state that he had an offensive weapon. The Appellant sates he was the only person arrested and charged with this offence, it was at night and the prosecution did not state under which light he saw the other 2 suspects and how they proved that he was in company with the Appellant and hence that issue is not clear.
28. He further submitted attacking the identification by the complainant and submitted that in the first report by PW1, PW2 and PW3 who alleged to have identified the Appellant by reason of long acquaintance, the witnesses never identified the Appellant by name and never gave a description of him. The name “Taib” was only introduced by PW1 in court but had not been mentioned anywhere in her first report. PW5 did not corroborate PW 1 and the charge sheet did not mention “Taib as an alias.
29. The Appellant further submitted that PW5 did not have the Appellant’s name until his arrest. He submitted that the incident is alleged to have happened on 31/05/2022 and was arrested on 11/09/2022 and begged the question, if the witnesses knew him, why wasn’t he arrested immediately and the police did not give any explanation why it took four months and two days to arrest a person who was present and well known. He further submitted that the offence he was charged with was maliciously planted to keep him in prison.
30. He submitted that at the time of the offence he was in Eldoret and the identification and recognition was mistaken. He was arrested for the offence of burglary and stealing and this case was planted on him due to grudges and attitude of the prosecution witness about him. The phone recovered at the scene was not his and his phone had already been returned to him by the I. O. This was not rebutted under Section 309 of the CPC hence penalizing the Appellant on the failure to discharge his duties.
Respondents submissions
31. The Respondent, in opposing the Appeal, canvased his appeal by way of written submissions and summarized the Appellant’s grounds as follows; identification was not proved beyond reasonable doubt; his conviction was based on uncorroborated evidence from the prosecution; reliance on afterthought evidence and failure to observe Article 50(2) of the Constitution. He relied on the case of Odhiambo vs. R [2008] KLR 565.
32. The Respondent identified three issues for determination being, whether the Respondent proved all ingredients of the offence of robbery with violence; whether the Appellant’s identification was proved and whether the sentence meted out by the Court against the Appellant was within the law.
33. On the elements of robbery with violence, the Respondent relied on the cases of Oluoch vs. Republic [1985] KLR and Dima Denge Dima & Others vs. R CA No. 300 of 2007 where in both cases, the Court highlighted the elements of the offence of robbery with violence which are that; the offender is armed with any dangerous weapon or instrument, or the offender is in company with one or more persons or at or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence on any person. The Respondent submits that PW1 met the Appellant and two others, PW2 heard screams and rushed out and realized it was the complainant who was screaming and saw 2 people running away and PW3 corroborated the evidence of PW2.
34. The State submitted that the eye witness testimony demonstrates that the crime was committed by more than one person and it was unfortunate the accomplices vanished. They further submit that PW1 testified that she was hit by an object and lost her money and phone and PW4 confirmed the injuries after examination and found that the injuries were inflicted by a sharp object. Hence all ingredients of the charge were proved.
35. It was further submitted by the state that the Appellant was positively identified by the complainant as she had known him for a while and further, PW2 identified the Appellant and had a torch and saw 2 people running. He flashed his torch at the Appellant and positively recognized him as he was a tenant since 2017. PW3 corroborated the evidence of PW2. Reliance was placed on the case of Wamunga vs. R[1989]KLR 424 which held that;
“it is trite law that where the only evidence against a defendant is evidence on identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of the identification were favourable and free from possibility of error before it can safely make it the basis of a conviction”
36. On recognition, the state relied on the case of Leonard Kipkemoi vs. R [2018]eKLR where the factors to be considered with respect to recognition were set out in R vs. Turnbull and other [1976] All ER 549 and in that case the court stated as follows;
“the judge should direct the jury to examine closely the circumstances un which the identification by each witness came to be made. How long did the witness have with the accused under observation? At what distance? In what light? Was the observation impeded in any way? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reasons for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? Recognition may be more reliable that identification of a stranger”
37. The Respondent submitted that in the instant Appeal it was recognition and not identification of the Appellant as the Appellant and the Complainant were known to each other.
38. The Respondent submitted that the offence meted out was within the law and in fact was a lenient sentence and the 25 years imprisonment was light and sought enhancement if the court deems it fit. The Respondent further submits that the Appellant rights under Article 50(2) of the constitution were not violated as the Appellant was accorded due process and procedure from inception to judgement. The Respondent urged the Court to dismiss the appeal and uphold the conviction of the trial court.
E. ANALYSIS AND DETERMINATION
39. I have perused the Record of Appeal and, in particular, the charge sheet upon which the Appellant was tried and convicted. The charge is framed as follows: robbery with violence contrary to Section 296(2) of the Penal Code. The particulars of the offence state that the Appellant, on the 31st day of May 2022 at around 20:30 hours at Manyanja Township in Bungoma South Sub-County within Bungoma County, robbed Rose Wamukoto of a Techno phone worth Kshs. 10,000 and a cash bag containing Kshs. 75,000, and immediately before the time of such robbery wounded the said Rose Wamukoto on her head.
40. Having carefully re-evaluated the entire record, including the evidence of the five prosecution witnesses, the sworn evidence of the Appellant, and the rival submissions of the parties, I am satisfied that this appeal turns on four issues for determination: first, whether the charge as framed was bad for duplicity; second, whether the prosecution proved the essential ingredients of robbery with violence contrary to Section 296(2) of the Penal Code; third, whether the identification or recognition of the Appellant was free from the possibility of error; and fourth, whether the sentence imposed was lawful and appropriate in the circumstances.
Whether the Charge was Bad for Duplicity
41. The Appellant submits, relying on Mwaura v Republic [2013] eKLR, that the charge as framed was duplex in that it cited Section 295 as read with Section 296(2) of the Penal Code, thereby conflating two distinct offences.
42. I have already set out above the charge sheet forming part of the Record of Appeal. It charges the Appellant with the single offence of robbery with violence contrary to Section 296(2) of the Penal Code alone. Section 296(2) is a complete offence-creating provision. It does not merely cross-refer to Section 295; rather, it incorporates within itself the elements of robbery while prescribing an enhanced penalty where any of the aggravating circumstances set out therein is established. The conventional and proper practice, affirmed in a long line of authority including Oluoch v Republic [1985] KLR 549, is to charge an accused person under Section 296(2) simpliciter, without separately invoking Section 295.
43. The decision in Mwaura v Republic (supra) is distinguishable. That case concerned a charge sheet that conjunctively cited Section 295 and Section 296(2) in a manner that created genuine ambiguity as to which offence the accused was called upon to answer. No such ambiguity arises on the face of the present charge sheet, which is framed in the singular and conventional manner. I am accordingly satisfied that the charge was not duplex, and I am unable to find any merit in this ground of appeal.
Whether the Prosecution Proved the Ingredients of Robbery with Violence
44. The elements of the offence of robbery with violence under Section 296(2) of the Penal Code were authoritatively set out in Oluoch v Republic (supra) and Dima Denge Dima & Others v Republic, Criminal Appeal No. 300 of 2007. The prosecution must establish the basic ingredients of theft accompanied by the use or threat of violence, together with proof of at least one of the following three aggravating circumstances: that the offender is armed with a dangerous or offensive weapon; that the offender is in the company of one or more other persons; or that immediately before, during, or immediately after the robbery, the offender wounds, beats, strikes or uses other personal violence upon any person. It is firmly settled, and I respectfully adopt the reasoning of the Court in Johana Ndungu v Republic, Criminal Appeal No. 116 of 1995, that these three circumstances are disjunctive and not cumulative; proof of any one suffices.
45. I have considered the evidence of PW1, who testified that she was struck on the head with an object and fell down, after which her phone and cash were taken from her. That evidence is corroborated by PW4, the clinical officer who examined her and found a wound to the head and assessed as grievous harm, caused by a sharp or blunt object, and which required suturing. I find that the use of actual violence upon the complainant, immediately before or during the taking of her property, was amply established on the evidence and satisfies the third limb of Section 296(2). It is therefore unnecessary for purposes of sustaining the conviction to make a definitive finding on whether the Appellant was in the company of others or was armed with a weapon, since proof of any single aggravating circumstance is sufficient in law.
46. I nonetheless address the company-of-others limb briefly, since it featured prominently in submissions. PW1 testified that she encountered the Appellant together with two other persons immediately before the attack. PW2 and PW3 both testified to seeing two individuals fleeing the scene upon their arrival, one of whom was pursued and apprehended as the Appellant. This evidence is mutually corroborative and satisfies me, on a balance independent of the violence limb already addressed, that the Appellant did not act alone. The Appellant's submission that the charge sheet's silence on joint commission renders the evidence of accomplices inadmissible or fatal to the prosecution's case is misconceived; the charge sheet need not name or describe co-offenders who were never apprehended in order for evidence of their presence and participation to be led and relied upon.
47. As to the discrepancy between PW1's evidence that Kshs. 7,500 was taken and PW3's reference to Kshs. 75,000, I note that the charge sheet itself, drawn from the original complaint, particularises the sum taken as Kshs. 75,000 — consistent with PW3's evidence rather than PW1's. This satisfies me that PW1's reference to Kshs. 7,500 in her oral testimony was no more than a slip in recollection or a transposition of figures while recounting a fast-moving and violent encounter, and not a material contradiction casting doubt on the prosecution's case. The authority in Erick Onyango Ondeng v Republic [2014] eKLR is instructive in any event: minor inconsistencies on matters not going to the root of the charge, particularly the precise quantum of cash taken, do not displace consistent and corroborated evidence on the central facts of the assault and the taking of property. I am satisfied that property was taken from the complainant by violence; the precise sum is not an element of the offence, and the discrepancy, properly understood against the charge sheet's own particulars, does not raise a reasonable doubt as to the occurrence of the robbery itself.
48. Similarly, I find no merit in the submission that the prosecution's failure to produce the stolen phone and cash, or expert evidence identifying the registered user of the complainant's phone, is fatal to the charge. Non-recovery of stolen property is unremarkable where, as here, the evidence establishes that two accomplices fled the scene with the proceeds of the robbery and were never apprehended. The offence of robbery is proved by evidence of the taking accompanied by violence; it does not require physical production of the stolen item as a precondition to conviction, particularly where, as here, the taking itself was directly witnessed and is corroborated by the medical evidence of injury.
49. I accordingly find that the prosecution proved beyond reasonable doubt the essential ingredients of the offence of robbery with violence contrary to Section 296(2) of the Penal Code.
Whether the Identification and Recognition of the Appellant was Free from Error
50. This issue lies at the heart of the appeal and merits the most careful scrutiny. It is trite law, as stated in Wamunga v Republic [1989] KLR 424, that where the case against an accused person rests wholly or substantially on evidence of identification or recognition, the trial court is enjoined to examine that evidence with the greatest care and to satisfy itself that the circumstances of the identification were favourable and free from the possibility of error before founding a conviction upon it.
51. I am satisfied, as was correctly appreciated by the trial court, that this is properly a case of recognition rather than identification of a stranger. PW1 testified that the Appellant was known to her prior to the material date and was referred to in the locality by the name 'Taib.' PW2 testified that the Appellant had been his tenant from an earlier period up to late 2017, and PW3 testified that he knew the Appellant as a neighbour. Recognition of a person previously known to a witness is, as the
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